Citation NR: 9712045
Decision Date: 04/09/97 Archive Date: 04/18/97
DOCKET NO. 95-42 191 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to a temporary total disability evaluation
under the provisions of 38 C.F.R. § 4.30 for convalescence
following surgery during a period of hospitalization from May
23 to June 8, 1966.
2. Entitlement to a temporary total disability evaluation
under the provisions of 38 C.F.R. § 4.30 for convalescence
following surgery during a period of hospitalization from
November 1 to 10, 1966.
3. Whether rating decisions of July 20, 1966, and January 16,
1967, involved clear and unmistakable error.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
James A. Frost, Counsel
INTRODUCTION
The veteran served on active duty from February 1959 to March
1962.
This appeal arises from a rating decision in July 1995 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Lincoln, Nebraska.
REMAND
The Board of Veterans’ Appeals (Board) notes that rating
decisions in October 1962 and December 1962 granted service
connection for bilateral otitis externa and assigned a 10
percent disability rating for that disability, respectively.
The veteran was hospitalized at a VA facility from May 23,
1966, to June 8, 1966, during which he underwent a right
mastoidectomy with tympanoplasty. A rating decision of July
20, 1966, confirmed and continued the 10 percent rating for
the veteran’s bilateral ear disability. The veteran was
hospitalized at the VA facility from November 1, 1966, to
November 10, 1966, during which he underwent a modified
radical left mastoidectomy. A rating decision of January 16,
1967, confirmed and continued the 10 percent disability
rating for bilateral otitis externa.
In 1966 and 1967, the veteran did not assert a claim under
the provisions
of 38 C.F.R. § 4.30, which provides that a temporary total
disability rating
(100 percent) will be assigned when it is established by
report at hospital discharge that surgery necessitated at
least one month of convalescence; such temporary total rating
for convalescence may be assigned for a period of one, two or
three months and may be extended under certain circumstances.
38 C.F.R. § 4.30.
In the veteran’s case, in March 1995 his representative
asserted that the rating decisions of July 20, 1966, and
January 16, 1967, involved clear and unmistakable error (CUE)
by failing to grant temporary total ratings for
convalescence. In his substantive appeal, received in
September 1995, the veteran asserted that he was unable to
return to work for 10 weeks after right ear surgery in May
1966 and for
12 weeks after left ear surgery in November 1966.
The Board must review all issues which are reasonably raised
from a liberal reading of the appellant’s substantive appeal.
Myers v. Derwinski, 1 Vet.App. 127 (1991). The veteran’s
claims of entitlement to temporary total evaluations for
convalescence following the two VA ear surgeries performed in
1966 have been raised by the veteran and are not otherwise
barred by time restrictions as to the filing of claims or
limitations imposed as to the finality of unappealed rating
actions. The Board finds that the issues on appeal are as
stated above, inasmuch as the claims for temporary total
ratings for convalescence following the surgeries in 1966
form the inherent basis of the instant appeal. Consideration
of the CUE claim should, the Board finds, be deferred until
after a disposition of the veteran’s claims under the
provisions of 38 C.F.R. § 4.30.
VA has a duty to assist the veteran in the development of
facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West
1991). In this case, the Board finds that additional
development of the evidence should be undertaken prior to a
final disposition of the appeal. In particular, the complete
records of the veteran’s two VA hospitalizations in 1966 for
ear surgery and of any VA outpatient followup care should be
obtained.
In addition, as the veteran has indicated that both ear
surgeries in 1966 were performed by E. Stewart Maness, MD, of
Lincoln, Nebraska, the Board finds that an attempt should be
made to obtain information from Dr. Maness concerning the
veteran’s recuperation from the ear surgeries in question.
Accordingly, this case is REMANDED to the RO for the
following:
1. The RO should obtain from the VA
Medical Center, Lincoln, Nebraska, or
from any depository to which the records
have been retired, the complete clinical
records of the veteran’s inpatient care
at that facility from May 23, 1966, to
June 8, 1966, and from November 1, 1966,
to November 10, 1966, and of all
outpatient followup care.
2. The RO should contact E. Stewart
Maness, MD, whose office address is or
was 2221 South 17th Street, Suite 414,
Lincoln, Nebraska 68502, and request that
he provide copies of his office treatment
records related to ear surgeries which he
performed on the veteran in 1966 at the
VA Hospital, Lincoln, Nebraska, and
followup care in the months thereafter,
as well as a statement as to the
veteran’s postoperative course and any
period of work restriction after ear
surgeries in May 1966 and November 1966.
Following completion of these actions, the RO should review
the evidence and determine whether the veteran’s claims may
now be granted. If the decision remains adverse to the
veteran, he and his representative should be provided with an
appropriate Supplemental Statement of the Case and an
opportunity to respond thereto. The case should then be
returned to the Board for further appellate consideration.
The purpose of this REMAND is to obtain clarifying medical
information. By this REMAND the Board intimates no opinion,
legal or factual, as to the ultimate disposition of the
appeal. No action is required of the veteran unless he
receives further notice.
BRIAN J. MILMOE
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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